This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal Nos.

2010AP1787-CR

2011AP2305-CR

Cir. Ct. No.2005CF171

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT II

State of Wisconsin,

Plaintiff-Respondent,

v.

Jerry L. Wheeler,

Defendant-Appellant.

APPEALS
from judgments and an order of the circuit court for Winnebago County:Thomas
J. Gritton, Judge.Affirmed.

Before
Brown, C.J., Reilly and Gundrum, JJ.

¶1PER CURIAM. In these consolidated appeals,
Jerry Wheeler appeals from judgments convicting him of repeated sexual assault
of the same child and from an order denying his postconviction motion.Wheeler argues on appeal that the circuit
court erroneously admitted evidence that he sexually abused the victim prior to
the crimes charged in this case.We reject
Wheeler’s claim that this was other acts evidence.[1]Rather, we conclude that this evidence was properly
admitted as “part of the panorama of evidence needed to completely describe the
crime that occurred and is … inextricably intertwined with the crime.”State v. Dukes, 2007 WI App 175,
¶28, 303 Wis. 2d 208, 736 N.W.2d 515.We
also reject Wheeler’s ineffective assistance of trial counsel claims and his argument
that the prosecutor impermissibly commented upon his right to remain
silent.We affirm.

¶2The criminal complaint alleged that in 2001 and 2002, Wheeler
had sexual contact and intercourse with the victim when she was twelve and
thirteen years old.The State sought to
introduce evidence that as early as 1999 in Indiana, where the victim and
Wheeler were living at the time, Wheeler spoke to the victim about sexual matters
and thereafter started sexually abusing her (the pre-charging period evidence).The abuse continued in different
jurisdictions until the charging period in the Wisconsin criminal
complaint.The State argued that the
jury needed to hear evidence that the sexual abuse started well before 2004
when the victim actually reported the abuse.[2]The State urged that such evidence put into
context the relationship between the victim and Wheeler and the history of
sexual abuse within that relationship.With
this evidence, the jury could perceive the victim as someone who was abused
from a young age, which may have affected her ability to report the abuse.Wheeler objected that the evidence was unduly
prejudicial.

¶3The parties and the circuit court analyzed the pre-charging period
evidence as other acts evidence under Wis.
Stat. § 904.04.The court
found that the evidence was relevant and would allow the jury to assess the
relationship between Wheeler and the victim, which was critical to the
case.In addition, the evidence was not
unduly prejudicial and could be the subject of a cautionary instruction.The court noted that evidence of this type
can be admitted “to furnish part of the context of the crime or [when]
necessary to a full presentation of the case.”In response to the court’s decision to admit this evidence, Wheeler requested
a cautionary instruction.The court
deferred consideration of the requested instruction until trial.

¶4At trial, the victim[3]
testified that Wheeler began speaking with her about sexual matters in 1999
when they were living in Indiana.When
she was ten, Wheeler began to abuse her via sexual contact and
intercourse.Wheeler told her that no
one would believe her if she disclosed the abuse and that she would be taken
away from her family if she did so.The
abuse continued unabated as the victim moved to Boston and then to
Wisconsin.The abuse ceased in August
2002 when Wheeler no longer had access to the victim.When she learned in August 2004 that Wheeler
would be returning to the area where she lived, the victim was afraid the abuse
would resume.At that point, the victim,
then fifteen years old, disclosed the abuse to her mother.At trial, Wheeler did not renew his request
for a cautionary instruction relating to the pre-charging period evidence.

¶5On appeal, Wheeler argues that the circuit court erroneously
admitted the pre-charging period evidence as other acts evidence.The State counters that the evidence was not
other acts evidence.In response,
Wheeler complains that the State has taken inconsistent views of the nature of this
evidence.The record reveals that in the
circuit court, the State variously argued that the evidence was either other
acts evidence or panorama evidence that placed the relationship between the
victim and Wheeler in context.

¶6A respondent may offer
grounds for affirmance that may be inconsistent with the position taken at
trial.State v. Holt, 128 Wis.
2d 110, 125, 382 N.W.2d 679 (Ct. App. 1985), superseded by statute on other grounds.We may sustain a correct decision on a
theory or reasoning not presented to the circuit court.State v. Jensen, 2011 WI App 3, ¶75,
331 Wis. 2d 440, 794 N.W.2d 482.

¶7We agree with the State that the pre-charging period evidence
was not other acts evidence.Evidence
that the abuse occurred over many years and that Wheeler told the victim that
no one would believe her and she would be removed from her family was all “part
of the panorama of evidence needed to completely describe the crime that
occurred and is … inextricably intertwined with the crime.”Dukes, 303 Wis. 2d 208, ¶28.“The evidence involved the relationship
between the principal actors,” Jensen, 331 Wis. 2d 440, ¶85, and
explained the context in which the victim delayed reporting the abuse.

¶8All evidence is subject to relevancy and prejudice
analyses.Wis. Stat. §§ 904.01, 904.03.Here, the circuit court assessed the
relevancy and prejudicial effect of this evidence when it decided to admit this
evidence.The court properly exercised
its discretion in admitting this evidence. SeeJensen,
331 Wis. 2d 440, ¶75.

¶9Wheeler next complains that the jury did not receive a cautionary
instruction for the pre-charging period evidence.Trial counsel did not ask the court for a
cautionary instruction as part of the jury instruction conferences.In the absence of such a request, the circuit
court was not required to give a cautionary instruction. SeeState
v. Payano, 2009 WI 86, ¶100, 320 Wis. 2d 348, 768 N.W.2d 832.

¶10Because trial counsel did not request a cautionary instruction,
Wheeler claims that his trial counsel was ineffective.Wheeler’s trial counsel testified at the
postconviction motion hearing.The circuit
court found that counsel made a strategic decision not to ask for a cautionary
instruction because counsel believes that such an instruction highlights
troublesome evidence for the jury and suggests to the jury how the evidence may
be used against the defendant.Counsel also
attempted to downplay the value of this evidence as part of his closing
argument.

¶12Finally, Wheeler argues that on three occasions at trial, the
prosecutor improperly commented on Wheeler’s right to remain silent and his decision
not to testify. The remarks focused on
the same theme:only two people, Wheeler
and the victim, knew what happened between them.Because Wheeler’s trial counsel did not
object to the prosecutor’s remarks, Wheeler lodged another ineffective
assistance of trial counsel claim. At
the postconviction motion hearing, trial counsel testified that he did not object
to the prosecutor’s remarks because he did not view them as a comment on
Wheeler’s right to remain silent.The
circuit court agreed that the prosecutor’s remarks were not a comment upon
Wheeler’s silence.

¶13To establish his ineffective assistance of counsel claim, Wheeler
had to show that he was prejudiced by trial counsel’s allegedly deficient failure
to object to the prosecutor’s remarks. SeeState v. Kimbrough,
2001 WI App 138, ¶26, 246 Wis. 2d 648, 630 N.W.2d 752.Counsel
cannot be faulted for not taking a course of action that would have
failed.See State v. Simpson,
185 Wis. 2d 772, 784, 519 N.W.2d 662 (Ct. App. 1994).We agree with the State and the
circuit court that the prosecutor did not impermissibly comment upon Wheeler’s
right to remain silent.Therefore,
counsel did not perform deficiently when he failed to object.

¶14We apply the following test to determine whether the
prosecutor’s remarks were improper:

[F]or a prosecutor’s comment to constitute an improper
reference to the defendant’s failure to testify, three factors must be present:
(1) the comment must constitute a
reference to the defendant’s failure to testify; (2) the comment must propose
that the failure to testify demonstrates guilt; and (3) the comment must not be
a fair response to a defense argument.

¶15The first challenged comment was made during the prosecutor’s
initial closing argument:

Ladies and gentlemen, the fact of the case is that
there were two people that can tell you what happened or didn’t happen in the
locations that [the victim] stated the abuse happened and you had the
opportunity to listen to [the victim] testify.You had the opportunity to observe her as she did so.Only two people can tell you what happened.

¶16Postconviction, the circuit court found that in the context of
the entire case, the argument was permissible.Shortly before the prosecutor made this remark, the prosecutor argued
that the defense was trying to distract the jury from the evidence presented in
court about the crimes.Rather, the
defense wanted the jury to consider that the victim had fabricated her claims
and to speculate about who else might have overheard the abuse, if the abuse
actually occurred.In this context, the
remark was a fair response to the defense and not a comment on Wheeler’s
failure to testify.

¶17Later, in closing argument, the prosecutor addressed the
victim’s delay in reporting the abuse, the suggestion that she might have
fabricated the abuse, and a suggestion that she might have confided in a
relative in 2001 about the abuse.The
prosecutor argued:“Only two people know
what happened.What makes sense?Ask yourself.”Postconviction, the circuit court found that
the remark was a response to an issue created by the defense:a suggestion that someone else might have
known about the abuse, had the abuse occurred.The court also found that the remark was an exercise of the State’s
right to argue that the jury should believe the victim.We agree with the circuit court.The remark was a fair response to the defense
and was not a comment on Wheeler’s failure to testify.

¶18In rebuttal, the prosecutor again returned to the “only two people
know” theme:

There are two people that can tell you what happened or
did not happen in the bedroom.The State
cannot bring in others to state what happened in that bedroom because only two
people know and I am not quite sure who I would bring in to tell you.

The circuit court found that
the prosecutor’s remark was a response to the defense’s closing argument and
not a comment upon Wheeler’s silence.The
defense cited the victim’s claim that she yelled at Wheeler during one incident
of abuse, but no one reported hearing her, which undermined the veracity of her
abuse claim.The State argues on appeal
that the remark was a fair response to Wheeler’s argument.We agree.The State wanted to bring the jury’s focus back to the fact that only the
principal actors, Wheeler and the victim, knew what happened between them.

By the Court.—Judgments and order
affirmed.

This
opinion will not be published.SeeWis.
Stat. Rule 809.23(1)(b)5.

[1] Had
this been other acts evidence, it would have been governed by Wis. Stat. § 904.04(2)
(2007-08).Other acts evidence is inadmissible
when it constitutes character or propensity evidence.State v. Sullivan, 216 Wis. 2d 768,
783, 576 N.W.2d 30 (1998).However, if
the proposed evidence is relevant and “does not hinge on an accused’s
propensity to commit the act charged,” the evidence may be admitted if other
requirements are satisfied.Id.

All subsequent references to the Wisconsin Statutes
are to the 2007-08 version unless otherwise noted.

[2] The
criminal complaint alleged that in August 2004, the victim and her mother
learned that Wheeler was going to be released from prison after serving a
sentence for sexual assault.Wheeler
intended to live near the victim and her mother.When the mother told the victim that Wheeler
would soon live nearby, the victim “began to cry hysterically and then
disclosed to her [mother] that she had been sexually abused by Jerry L. Wheeler
since she was eight years old.”

[3] The
victim was nineteen years old when she testified at Wheeler’s September 2008
trial.